Slapped with a judgement even though I was paying as agreed...

[bkrptinfl]

I had been sued by a collections attorney for a cc debt and we agreed in mediation (with their attorney appearing via telephone) to set up a payment plan. The agreement stated that if I failed to abide by the terms they would be entitled to a default judgement, less any amount paid, upon presentation of an affidavit to the court.

The court supplied me with a copy of the agreement (not even executed by the attorney because they appeared by phone) which was a single page stating the terms of repayment but there was no information like where to mail the check or any type of account number. After the mediation was complete I never got a single communication from the collections attorney and I began to make payments as agreed by mailing checks to the address that was on the suit.

Close to 3 months after I started making payments as agreed (I have copies of the checks and they cashed each one.) I got a notification of nonpayment indicating they were going to request a judgement from the court.

Naturally, I called the collection attorney's office and wound up faxing copies of the checks. I was assured, no doubt by some $10.00 an hour customer service associate, that the matter would be taken care of and I should call back in a few days if I didn't hear from him. I got no call. Go figure.

I followed up with the same rep and after a few calls to him on different days he had no additional info. The last time I spoke with him I was getting a little upset that this simple matter would not be resolved and he transferred me to someone else. No resolution with the next rep either; he wouldn't even confirm they got the fax. All he wanted to hear, "from my mouth", those were his words, was what the payment agreement was. I told him he should know what it was and I was only concerned with being credited for the payments I made. I wound up hanging up on him as I was getting nowhere...

About 2 weeks later I got notification that there was a judgement issued for the total amount listed on the mediated agreement.

Is there anything I can do about this considering I was paying them and the affidavit they gave to the court was not factual?

Thanks in advance for any thoughts on this...

[GDayMateAZ]

You should submit the Motion to Vacate the Judgment

attaching the copies of your cancelled and cashed checks,

which is the proof that you paid "as agreed".

These attorneys deserve to be slapped back for their misconduct

by your complaints to this court and your State's Bar.

I had been sued by a collections attorney for a cc debt and we agreed in mediation (with their attorney appearing via telephone) to set up a payment plan. The agreement stated that if I failed to abide by the terms they would be entitled to a default judgement, less any amount paid, upon presentation of an affidavit to the court.

The court supplied me with a copy of the agreement (not even executed by the attorney because they appeared by phone) which was a single page stating the terms of repayment but there was no information like where to mail the check or any type of account number. After the mediation was complete I never got a single communication from the collections attorney and I began to make payments as agreed by mailing checks to the address that was on the suit.

Close to 3 months after I started making payments as agreed (I have copies of the checks and they cashed each one.) I got a notification of nonpayment indicating they were going to request a judgement from the court.

Naturally, I called the collection attorney's office and wound up faxing copies of the checks. I was assured, no doubt by some $10.00 an hour customer service associate, that the matter would be taken care of and I should call back in a few days if I didn't hear from him. I got no call. Go figure.

I followed up with the same rep and after a few calls to him on different days he had no additional info. The last time I spoke with him I was getting a little upset that this simple matter would not be resolved and he transferred me to someone else. No resolution with the next rep either; he wouldn't even confirm they got the fax. All he wanted to hear, "from my mouth", those were his words, was what the payment agreement was. I told him he should know what it was and I was only concerned with being credited for the payments I made. I wound up hanging up on him as I was getting nowhere...

About 2 weeks later I got notification that there was a judgement issued for the total amount listed on the mediated agreement.

Is there anything I can do about this considering I was paying them and the affidavit they gave to the court was not factual?

Thanks in advance for any thoughts on this...

[bkrptinfl]

Thanks for the quick reply... Here's a little more info...

I never finished paying them off. I was 3 payments into it and had about $5k left to pay. Does that matter if I try to submit the Motion to Vacate the Judgment? If the motion is granted, does their entire case go away and is the judgement removed from my credit report?

Is there any cause for damages to be paid to me? Should I speak with a consumer attorney about this?

I had considered filing a complaint against the attorney with the FL Bar. I guess that is a valid course of action. However, how do I complain to the court? Do I go to the judge who finalized the judgement or some other official?

Thanks again!

[GDayMateAZ]

1. Your account still was current, never late.

2. I'm not sure about damages paid back to you .. Of course, it's the best to retain atty for yourself,

if $$$ is not issue ... Anyway, you could talk with a lawyer 15 mins for $30 (such rate was 10 years ago, though ..)

3. You can put some words about these atty's misconduct into your Motion to Vacate Judgment.

And of course, file the complaint to FL Bar.

Thanks for the quick reply... Here's a little more info...

I never finished paying them off. I was 3 payments into it and had about $5k left to pay. Does that matter if I try to submit the Motion to Vacate the Judgment? If the motion is granted, does their entire case go away and is the judgement removed from my credit report?

Is there any cause for damages to be paid to me? Should I speak with a consumer attorney about this?

I had considered filing a complaint against the attorney with the FL Bar. I guess that is a valid course of action. However, how do I complain to the court? Do I go to the judge who finalized the judgement or some other official?

Thanks again!

[bkrptinfl]

Thanks GDayMateAZ...

Anyone else with input?

[Guest usctrojanalum]

What were the repayment terms?

[bkrptinfl]

What were the repayment terms?

They were pretty simple... Payments started 45 days after the mediation and were to consist of monthly payments with the first two being a small amount. On the third month, the payment amount would increase to a greater sum and would then stay the same until the balance, court costs and interest was paid off.

They got the final judgement about 2 weeks before the third payment was due.

Do you think money was a motivating factor for the attorney to act the way they did? I can only guess it was. They (the attorney) stood to make money faster by performing the action for their client as compared to collecting the amount owed from me. It would have taken several years for the account to be settled as per the agreement.

[bkrptinfl]

Anyone else?

[FL4answer58]

"Debt buyers employ a range of collection tactics, from sending collection letters to filing lawsuits. If consumers are willing but not able to pay the alleged debts, some debt buyers even offer to refinance them on sub-prime [rates, interest and methods - to re-age the debt] that have deceptive terms and high fees. Debt buyers claim that these high-cost [refis'] give consumers a chance to rebuild their credit while paying off their debt in installments, but this scheme can ensnare consumers into using a predatory product to repay debts they might not even owe or be obligated to pay."

FTC and FDCPA have looked into these tactics - you may have recourse and an actionable cause to counter-sue.

I’d do dome research [ Keywords - Deceptive Debt Relief Scams] starting with your state laws and work it to include federal regulation and recent case law on a federal level.

For example one method: http://money.cnn.com/2010/05/03/pf/saving/debt_consolidation_fraud/index.htm?section=money_pf_saving

And - FTC Testifies About Continuing Efforts to Protect Consumers from Deceptive Debt Relief Scams

http://www.loansafe.org/ftc-testifies-about-continuing-efforts-to-protect-consumers-from-deceptive-debt-relief-scams.

Edited October 3, 2010 by FL4answer58

[bkrptinfl]

Thanks for the input FL4answer58, however I'm a bit too "ignorant" at this to draw a parallel between what you've posted and my situation. Can you help me connect the dots?

[FL4answer58]

I had been sued by a collections attorney for a cc debt and we agreed …to set up a payment plan. The agreement stated that if I failed to abide by the terms they would be entitled to a default judgment, less any amount paid, upon presentation of an affidavit to the court.

The court supplied me with a copy of the agreement … I began to make payments as agreed by mailing checks to the address that was on the suit.

Close to 3 months after I started making payments as agreed (I have copies of the checks and they cashed each one.) I got a notification of nonpayment indicating they were going to request a judgment from the court.

About 2 weeks later I got notification that there was a judgment issued for the total amount listed on the mediated agreement. ...

They were pretty simple... Payments started 45 days after the mediation and were to consist of monthly payments with the first two being a small amount. On the third month, the payment amount would increase to a greater sum and would then stay the same until the balance, court costs and interest was paid off.

They got the final judgement about 2 weeks before the third payment was due.

It would have taken several years for the account to be settled as per the agreement.

It just seems to me IMO, that something is just not right about all this.

Call around to a NACA lawyer in your area…while I don't think this complicated ...you have a 'breach of contract' against them...considering your 'agreement' in settlement.

A lawyer is always recommended first - and in this situation I think it demands one.

Send FlaLawyer a copy of this link…ask him to take a quick look at your situation,

Maybe he can suggest a good NACA lawyer based in your area.

Edited October 4, 2010 by FL4answer58

[bkrptinfl]

Thanks again for the input.

I'm now thinking I haven't expained something correctly or I've left something out. I'll try to include what I feel I may have missed.

The mediation was handled by the "County Court Mediation Alternative Dispute Resolution" person who was there the day I went to the "Pre Trial Conference". I guess there is more than one person in this capacity working for the county.

What I have is a "Record of Agreement", a single page, and it was created with the assistance of a "Certified County Court Mediator" filling in the blanks. The mediator offered no advice to either party and the judge was not present in the room. In the room was myself, the "Mediator" and the attorney who appeared via telephone. All the mediator did was record what the attorney and myself agreed to on the "Record of Agreement" form.

Below the portion where the mediator wrote remarks containing the details of the repayment schedule, the form states:

"Should the Defendant fail to abide by the terms of this agreement the plaintiff is entitled to a default judgement in the amount agreed upon, less any amount paid, upon presentation of an affidavit to the XXX County Clerks Office. This agreement constitutes full settlement of all claims in this matter."

Does that shed any additional light on things?

FL4answer58 (or anyone with enough posts, lol) can you send a PM to FlaLawyer for me? I don't have enough posts to do it myself...

Thanks again!!!

[FL4answer58]

Thanks again for the input.

I'm now thinking I haven't expained something correctly or I've left something out. I'll try to include what I feel I may have missed.

The mediation was handled by the "County Court Mediation Alternative Dispute Resolution" person who was there the day I went to the "Pre Trial Conference". I guess there is more than one person in this capacity working for the county.

What I have is a "Record of Agreement", a single page, and it was created with the assistance of a "Certified County Court Mediator" filling in the blanks. The mediator offered no advice to either party and the judge was not present in the room. In the room was myself, the "Mediator" and the attorney who appeared via telephone. All the mediator did was record what the attorney and myself agreed to on the "Record of Agreement" form.

Below the portion where the mediator wrote remarks containing the details of the repayment schedule, the form states:

"Should the Defendant fail to abide by the terms of this agreement the plaintiff is entitled to a default judgement in the amount agreed upon, less any amount paid, upon presentation of an affidavit to the XXX County Clerks Office. This agreement constitutes full settlement of all claims in this matter."

Does that shed any additional light on things?

FL4answer58 (or anyone with enough posts, lol) can you send a PM to FlaLawyer for me? I don't have enough posts to do it myself...

Thanks again!!!

OK so ADR ....agreement now they seek SJ. Correct?

[bkrptinfl]

They have already been granted the final judgement. That happened about 2 weeks before the 3rd payment was due.

[FL4answer58]

When was the SJ? Date?

Have you looked this up on your small claims court public records page?

Is there a posted judgment there?

If so do you have a copy of the judgment order?

Edited October 4, 2010 by FL4answer58

[bkrptinfl]

When was the SJ? Date?

Have you looked this up on your small claims court public records page?

Is there a posted judgment there?

If so do you have a copy of the judgment order?

The date they got the Judgement was 7/13/2010.

I have looked it up. All the case information is there and the Judgement shows up too. The Judgement is listed as "ER:Final Judgement" on 7/13/2010. It shows the "Disp Date" as 7/13/2010 and the "Disp Description" as "Disposed By Judge".

I do have a copy of the order that was sent to me by the attorney. I never got any mail directly from the County about the Judgement.

Edited October 5, 2010 by bkrptinfl

[FL4answer58]

Because this is ADR you need to review ADR rules: [ADR Resource Handbook 2010 52 ADR Statutes]

See: ADR Resource Handbook 2010 52 ADR http://www.flcourts.org/gen_public/adr/bin/ResourceHandbook2010/2010ResourceHandbookTab1ADRStatutes.pdf

File a motion (an application to the court under this law shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions.)

I would title it ‘Defendants Motion to Vacate Judgment’ – then spell out your argument. Make sure you set for hearing before a judge.

[Note: If not vacated, after motion – then appeal]

Speak to section and title:

682.17 Application to court.—

Except as otherwise provided, an application to the court under this law shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

682.13 Vacating an award.

(1) Upon application of a party, the court shall vacate an award when:

(a) The award was procured by corruption, fraud or other undue means.

( There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.

© The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.

(d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.

(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection. But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

(2) An application under this section shall be made within 90 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.

(3) In vacating the award on grounds other than those stated in paragraph (1)(e), the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration or by the court in accordance with s. 682.04, or, if the award is vacated on grounds set forth in paragraphs (1)© and (d), the court may order a rehearing before the arbitrators or umpire who made the award or their successors appointed in accordance with s. 682.04. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and commences from the date of the order therefor.

(4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

682.20 Appeals.

(1) An appeal may be taken from:

(a) An order denying an application to compel arbitration made under s. 682.03.

( An order granting an application to stay arbitration made under s. 682.03(2)‐(4).

© An order confirming or denying confirmation of an award.

(d) An order modifying or correcting an award.

(e) An order vacating an award without directing a rehearing.

(f) A judgment or decree entered pursuant to the provisions of this law.

(2) The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.

[FL4answer58]

I think your going to need to engage the court here, but first ...

Also try this; You could ask the court ADR for a meeting to discuss your 'application' before your motion - to get 'clarification'. This is a meeting between you and mediator ONLY not oppostion. 'Mediator may meet and consult privately with any party'.

Rule 9.720. Mediation Procedures

(e) Communication with Parties. The mediator may meet

and consult privately with any party or parties or their counsel.

Counsel shall be permitted to communicate privately with their

clients.

Edited October 5, 2010 by FL4answer58

[bkrptinfl]

Great replies FL4answer58!!!